Policinski: How not to protect religious liberty

By Gene Policinski
Inside the First Amendment
Here’s a quick primer on a recent proposal by two North Carolina legislators to permit the state to designate a official religion:
First, the North Carolina Speaker of the House effectively killed the proposal one day after it was filed, saying it “will not advance” to a committee hearing.
Second, even if enacted, it would not survive constitutional scrutiny under existing Supreme Court decisions.
And third, if it did overcome both legislative and legal barriers, it would have challenged the very underpinnings of the kind of religious liberty we have professed to the world since 1791, when the First Amendment was ratified, as part of the Bill of Rights.
The argument by those who favor the proposed North Carolina designation combines “state nullification” with a constitutional concept expressed in recent years by some in Tea Party gatherings and by other conservative groups: that the First Amendment’s prohibition of “establishment” of an official faith and providing protection for “free exercise” in religious choice only applies at the federal level.
The outcome of the Civil War would seem to have settled the whole nullification issue, through it arose again, without gaining traction in the courts, as Southern states attempted to fight desegregation orders and voting laws in the 1950s. The concept also went by the name “interposition.”
The second idea — that the 45 words of the First Amendment only apply to federal laws and the federal government — actually was the practice until a series of U.S. Supreme Court decisions beginning in the 1890s, in which an action called “incorporation” applied to parts of the Bill of Rights to states.
The “establishment” clause contained in the first 16 words of the First Amendment that protect freedom of religion was a late bloomer in this incorporation process. That clause was first applied to the states by the Supreme Court until 1947 — in a case having to do with use of public funds in support of private religious schools in New Jersey.
Protection of the other clause of those first 16 words, “free exercise of religion” against contrary state laws came a just a bit earlier, in 1940 — generally impacting state laws requiring a declaration of some religious faith in order to run for public office.
These kinds of proposals crop up periodically, often combined under the label of “states rights, citing the 10th Amendment, or in attacks on the reach of the “due process” provision provided by the 14th Amendment.
While this latest legislative proposal did not specify what faith might be declared “official,” it was titled “Rowan County, North Carolina, Defense of Religion Act of 2013,” referring to a legal battle in that county over the use of only Christian prayers at public meetings.
For much of the nation’s history, the use of Christian was matter-of-course in many places where other faiths were barely represented, if at all, or were subject to openly expressed bigotry.
But freedom of religion – as with the other four freedoms in the First Amendment – is not defined, supported or validated by majority vote. Just the opposite: First Amendment freedoms protect our individual rights from being overridden by the “majority” of citizens working through the hand of government.
The establishment and free exercise clauses are not present to restrain religion, privately practiced or expressed in the public square. They exist to shield religious faiths of all kinds from intrusion by the heavy hand of government – even if that hand purports to act benevolently.
We alone are empowered, each of us – not elected officials, states, judges or Congress – to designate our own, personal “official” religion.
Gene Policinski is senior vice president and executive director of the First Amendment Center. Email him at gpolicinski@fac.org.